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The Return of George Sutherland:
Restoring a Jurisprudence of Natural Rights

By Hadley Arkes
Princeton University Press, 297 pp.  $29.95

This work is not strictly speaking a biography, though it reports the key facts about the life of Justice George Sutherland. Hadley Arkes analyzes Sutherland’s most significant opinions in order to identify and clarify the “moral foundations of jurisprudence.” Sutherland’s jurisprudence would supply “the moral ground that is missing in the jurisprudence of both liberals and conservatives in our own time.” Arkes points out the curious judicial legacy of the New Deal. Conservatives, on the one hand, reacting against the undisciplined measures of the era, tend to reject natural rights in favor of legal positivism—sometimes going so far as to embrace the judicial philosophy of Hugo Black (one of the arch-New Dealers). Liberals, on the other hand, wishing to extend the sphere of individual rights against government, tend to reject any universal moral logic that might ground natural rights.

The book consists of eight chapters: three on Sutherland’s background and intellectual principles, three on various constitutional problems in New Deal legislation, one on executive powers and foreign policy, and a conclusion. As in Arkes’ previous books, we find here a remarkable sharpness of analysis and a limpid writing style. Arkes exposes the impostors in the house of jurisprudence. He saves Sutherland from oblivion and obloquy. He advances on many fronts our understanding of the authority of moral reasoning in public affairs. Nevertheless, even the serious (indeed, grateful) reader might wonder whether Arkes treats sufficiently the issues that make some conservatives hold the jurisprudence of natural rights at arm’s length. If, in what follows, I comment in greater depth upon a single unresolved issue rather than upon the many strengths of the book, I apologize only by pointing out that the book is serious enough to bear this kind of scrutiny.

Born in England in 1862, George Sutherland immigrated at the age of two to the territory of Utah with his father, who was attracted by the Church of Latter Day Saints and the American frontier. Though Sutherland’s father eventually defected from the Church, Sutherland nevertheless enrolled as a “Gentile” student at Brigham Young University (then B.Y. Academy). Throughout his life, he expressed appreciation for both the education and kindly tolerance he received in this fledgling school of the Saints. After completing his law studies at the University of Michigan, Sutherland took up the practice of law in Utah, eventually becoming active in the Republican party.

Elected to the House in 1900 and to the Senate in 1905, he became an advocate of progressive measures on such issues as governmental banking, women’s suffrage, workmen’s compensation, and the working conditions of miners and seamen. Yet after he was appointed to the Supreme Court by President Warren Harding in 1922, Sutherland immediately made his mark as a staunch defender of individual rights of contract against what was regarded at the time as liberal social legislation, arguing in Adkins v. Lyons (1923) that a 1918 federal law establishing a minimum wage for women violated the due process clause of the Fifth Amendment.

Sutherland’s career on the Court encompasses the turbulent early years of the Depression and the New Deal. He was one of the “Four Horsemen” (along with Justices Butler, Van Deventer, and McReynolds) who resisted the economic and social legislation of Roosevelt and the Seventy-Third Congress. The National Industrial Recovery Act was ruled unconstitutional in 1935, and the Agricultural Adjustment Act in 1936. Federal judges by 1936 had issued some 1,600 injunctions to restrain federal officials from carrying out various congressional acts. The effort by Sutherland to preserve the Constitution in a time of national emergency, however, ultimately was not successful. By 1941, all of the Horsemen had retired (Sutherland in 1938) and been replaced by New Dealers. Having spent his formidable intellect against the tide of history, Sutherland was politely consigned to history. When we think of the important legal minds of the century, we are likely to recall the names of those such as Justices Douglas, Black, and Frankfurter, who served after Sutherland.

During the first decade of his tenure on the bench Sutherland was a forceful champion of substantive due process. According to this view, when government takes away liberty or property, it is not only required to do so in a way that is procedurally fair, but must also justify the law in terms of a more exacting standard of equity. Why, for example, should women be subjected to restrictions on their liberty of contract that could not lawfully be imposed on men under similar circumstances? Once the question is posed in this fashion, the issue of natural justice seems unavoidable—for what is being contested is not merely whether a law is competently and properly enacted as a legal matter, but also whether the law is substantively just.

From the outset, this jurisprudence has been controversial. Beginning with the Lochner case in 1905, when the Supreme Court invalidated a New York law regulating the hours of bakery workers, progressive critics maintained that the Court was illegitimately imposing a laissez-faire ideology by the mechanism of substantive due process. Much later, after the Warren and Burger Courts used “due process” as a tool for discovering unenumerated rights of privacy, conservative critics such as Judge Robert Bork have alleged that by assuming power to review the moral worthiness of legislation, the Court’s jurisprudence of substantive due process alters the Constitution’s distribution of authority, not only as between legislatures and courts, but also between federal and state governments.

Arkes does a credible job of answering the first objection, that due process was a foil for unbridled capitalism. At least as practiced by Sutherland, substantive due process was grounded in the natural right of the individual against the arbitrary restrictions of government, and certainly was not an all-purpose immunity against the police powers of the State. It was a theory of justice, not a theory of economics masquerading as a theory of justice.

Arkes proposes that “what we call ‘natural law,’ or an argument about ‘natural rights,’ may be satisfied by an argument carried out strenuously, with the laws of reason, for what is engaged there is nothing less than the ‘nature’ of ‘a rational creature as such.’” Natural rights are the moral restraints appropriate to the way rational agents govern one another through positive law. That they were typically used to invalidate legislation regulating economic liberties is incidental rather than essential. Arkes insists, “The Constitution would restrain the government from a host of ‘arbitrary restrictions’ as it sought to interfere with natural rights in any of their dimensions, whether in the freedom of people to engage in political speech or in the claim to keep the earnings of their own labor.”

By the same token, shouldn’t rational agents be protected against laws that are not made by a proper authority? Establishing and maintaining fair shares of authority is one of the first goods of any polity. Indeed, without this allocation we might doubt whether there is a polity at all. On this score, it is not so clear that Arkes gives a complete answer to the second objection, that the Supreme Court’s substantive due process jurisprudence violates the institutions of authority mandated by the positive law of the Constitution. It is not enough to convince us that substantive due process represents the moral restraints of natural justice rather than the judicial impositions of an ideology; Arkes must also convince us that the method does not improperly reallocate political authority.

The problem is that fair distribution of authority rests on contingent and arbitrary grounds. The word “arbitrary” usually conjures the pejorative connotation of an act of will done without reason. But “arbitrary” can also mean a decision not in the absence of good reasons, but rather in the absence of reasons dictating that the law be this rather than that. Much of our positive law is “arbitrary” in this sense. Every polity needs someone to make determinate whatever is left indeterminate by natural law. The constitutional allocation of authority to make and adjudge morally worthy laws would seem to be arbitrary in this latter sense. There is nothing in “the ‘nature’ of ‘a rational creature as such’” that dictates the particular institutional allocations of political authority. Natural law may dictate that polities exist and that the governments of such polities have some authority, but natural law does not dictate a specific distribution of power.

To be sure, Arkes never denies that the axiomatic principles of morality and the institutional principles of jurisdiction are distinguishable. Yet he so emphasizes the nonarbitrary character of moral logic that the arbitrary character of institutional offices and of most positive law is given short shrift. It is one thing to defend the idea that there are principles of justice not dependent upon local conventions; it is quite another thing to defend the distribution of authority according to a particular order of positive law. If Arkes is to convince conservatives that Sutherland was correct in his jurisprudence of substantive due process, he will have to convince them that it comports with the institutional logic of authority under this Constitution, and not merely that the moral logic Sutherland brought to particular cases was sound and consistent.

Interestingly, Sutherland did not rule out the possibility that New Deal schemes, however improbably, could promote justice in the substantive sense. But he did question whether the Constitution authorizes the federal government to pursue such schemes, even in the name of justice. Sutherland contended that the “national powers of legislation were not aggregated but enumerated.” The moral questions involved in a problem such as economic justice must be distinguished from the constitutional principle distributing the authority and power to deal with the problem. The universality of a right does not imply universality of jurisdiction to enforce it.

Arkes gives a brilliant criticism of the “new age of administration” in which lawyers believed that technical facts could be substituted for the moral authority of jural reasoning. In a 1932 case considering restrictions that the state of Oklahoma had placed on people entering the ice business, Justice Brandeis urged his colleagues to adopt the principle that under certain circumstances “free competition might be harmful to the community.” Brandeis mounted an array of facts concerning the relation between food temperatures and health, the per capita consumption of ice, and the number of refrigerators sold in Oklahoma. Brandeis contended that the Court should not stand in the way of “experimentation in the fields of social and economic science.” On this view, the several states should be regarded as experimental laboratories of enlightened practice. (One cannot help but note the analogy to some Republicans today, who cast the principle of federalism in precisely these terms.)

Arkes points out that this amateur science is a simulacrum of legal reasoning. It has little capacity to enlighten us as to the principles that ought to govern the use of power. But just where one might have expected him to conclude that sociological and managerial “jurisprudence” contributes nothing to the adjudication of contests over the allocation of powers, he takes the problem in a different direction, arguing for the superiority of moral reasoning. On this score, we could hardly disagree with Arkes. Given the choice between policies determined by the moral logic of Sutherland versus policies determined by the shallow, managerial methods of the Brandeis school, it is not hard to see where liberty is best protected. Nevertheless, the difficult question still remains: According to what norm do we distinguish the rightful and wrongful exercise of the police powers of the states? Even if we agree with Arkes that there exist stable moral principles governing justice in economic matters, we are also interested in who has authority to make laws with regard to buying and selling. To show that the conclusion cannot be reached by a managerial index does not show that it can be reached by means of abstract moral principles. To show Brandeis wrong is not to show Sutherland right, for the question of the positive constitutional law distributing authority still remains.

Throughout the book, Arkes calls our attention to the distinction between “propositions that are merely contingent and problematic and propositions that have the force of logical necessity.” A jurisprudence of contingent facts is no jurisprudence at all. Fundamental principles must be distinguished from contingent cases that exemplify those principles. These ideas are the stock-in-trade for anyone avowing a classical jurisprudence, and Arkes expounds them masterfully. The Constitution, however, consists largely of rules distributing authority—rules that are not adequately characterized in terms of necessary propositions. Although Arkes (via Sutherland) gets close to the nub of this problem in the chapters on the New Deal, he is more intent upon winning the argument about the authority of moral reasoning against skeptics, both left and right.

There are other critics, however, who are not moral skeptics, but hold that the positive law of the Constitution places institutional restraints upon how and by whom moral arguments can be made. In the only case he argued before the Court, John Marshall claimed, “The judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution.” Until we can understand why Marshall’s proposition deserves equal consideration in a theory of natural rights—that is, until the morality of authority is distinguished from and related to the authority of moral reasoning—Arkes’ argument will be incomplete.

Russell Hittinger teaches in the School of Philosophy at the Catholic University of America.